DR D C ARHIN v ENFIELD PRIMARY CARE TRUST [2010] UKEAT 0296_09_2601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2010] UKEAT 0296_09_2601Case No Appeal No. UKEAT/0296/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR D C ARHINAPPELLANTENFIELD PRIMARY CARE TRUSTRESPONDENT
Before
Mr Justice Langstaff Professor S R Corby Mr B M WarmanDate 26 January 2010
[1]APPEARANCES For the Appellant DR D C ARHIN (The Appellant in Person) For the Respondent MS M MURPHY (of Counsel) Instructed by: Messrs Bevan Brittan LLP Fleet Place House 2 Fleet Place Holborn Viaduct London EC4M 7RF SUMMARY PRACTICE AND PROCEDURE Appellate Jurisdiction/Reasons/Burns-Barke REDUNDANCY UNFAIR DISMISSAL RACE DISCRIMINATION The employer was found not to have acted by reason of race when selecting one of two possible candidates for a post without giving the other any interview, but by "slotting in". "Slotting in" in these circumstances was, however, held to be unfair so as to found a finding of unfair dismissal. The reasons given by the Tribunal showed it had not clearly identified the requirements of the new post or the jobs actually being done by the Claimant and her comparator, without which the finding made (that the reason was not race, but mistake) appeared illogical. Appeal allowed with remission to a fresh Tribunal. THE HONOURABLE MR JUSTICE LANGSTAFF Introduction This is an appeal against the Decision of an Employment Tribunal at Watford whose reasons were delivered on 23 January 2009. By those reasons, the Tribunal upheld the Claimant's complaint that she had been unfairly dismissed by her employer, rejected her complaint that she had been automatically dismissed, and rejected her complaint that she had been discriminated against on the grounds of race. This appeal is brought against the Tribunal's determination in respect of the latter matter only.[2]The Tribunal recorded the length of the hearing, perhaps a testament to the complexity of some of the issues. The Tribunal spent one and a half days pre-reading and followed that by five and a half days of evidence and consideration. The Facts[3]The underlying facts were these. The Claimant (now the Appellant) had been employed by the Respondent as an assistant director of health improvements/consultant in public health medicine. The Tribunal records that there was a review of the services in public health and a reorganisation of the directorate in which the Claimant worked principally with a view to improving services but saving money. A consequence was that the Claimant's post became redundant. The Tribunal thought that that was a genuine redundancy. The Tribunal found that essentially four consultant posts were being reduced to two and that of the posts which the Claimant and another man, a white man, Mr Stewart, occupied there would thereafter be one post.[4]The Respondent employer decided to fill that one post by slotting in; that is, by providing that one of the post holders currently in post should simply move over to the new job. The other post holder would necessarily be redundant subject only to the availability of alternative employment. It decided to do this without there being any form of competitive exercise in respect of which both the Claimant and Mr Stewart, for they were the two people concerned, could compete one against the other. It was part of the Claimant's case that she alone of the two held a medical qualification and had been highly qualified for longer than her comparator, Mr Stewart, though it has to be said that both her CV and that of Mr Stewart, which the Tribunal saw and we have seen, demonstrate people of considerable ability.[5]The Employment Tribunal decided that the Claimant should have been considered for slotting in. They took the view that she had wrongly been excluded from taking part in the competitive exercise which, had the employer's policy been properly applied, should have been adopted. It found that although the employer had made all reasonable efforts to assist the Claimant in obtaining alternative employment, nonetheless those findings that she had been unfairly denied the opportunity of taking part in a competitive exercise for the one remaining post and that another had simply been slotted into that post justified a finding that she had been unfairly dismissed.[6]Those facts essentially underlay the complaint which the Claimant made that she had been discriminated against on the grounds of race. In her ET1 she complained that her CV demonstrated that she was better qualified to continue in the role of assistant director/consultant in public health than was her comparator, had been denied any form of competitive selection for the post and, accordingly, there was an inference that she had been discriminated against on account of her colour contrary to section 4(2) of the Race Relations Act 1976 .[7]The response of the employer, so far as material, is contained at paragraphs 15 and 16 of the ET3. The employer there said that it was denied that the Claimant should have been permitted to compete for the post-reorganisation assistant director post or that it was inappropriate for the PCT to slot Mr Stewart into that post. The Respondent contended that his role as assistant director/public health specialist was materially the same as the role of the post-reorganisation assistant director. It further contended that the Claimant's role, despite having a similar title to Mr Stewart's, was entirely different to that of either Mr Stewart or the post-reorganisation assistant director such that it was not appropriate for the Claimant to be considered for that post. One might be forgiven for thinking that the Respondent's case was, therefore, that a deliberate but justifiable decision had been made to prefer Mr Stewart for the post in circumstances which did not require the employer to interview the Claimant. The Employment Tribunal's Decision[8]The Tribunal's Decision was fairly briefly set out for a case of the length it was. We should indicate that we have no complaint whatsoever about that. Tribunals are rightly enjoined to be brief where brevity will suffice. There are undoubtedly problems which may be caused by Tribunals being over long. There is no requirement for a Tribunal to dot every 'i' and cross every 't'. Ms Murphy reminded us of these points in her submissions for the employer and rightly so.[9]It is nonetheless axiomatic that a Tribunal's judgment must be sufficient in the circumstances of the particular case to enable the losing party to understand why it is that she has lost and, for that matter, the successful party why it is that they have won. There are at least three reasons for this which have been identified in the by now copious case law which refers to it. Indeed, for her part Dr Arhin has in her submissions referred us to the well-known case of Meek v The City of Birmingham District Council [1987] IRLR 250 and Ms Murphy to what was said in relation to the same point in Balfour Beatty Power Networks Ltd v Wilcox [2007] IRLR 63 , in that case to the effect that Rule 30(6) of the 2004 Rules, which requires sufficient reasons, is intended to be a guide and not a straitjacket so that if it can be reasonably spelled out from a determination that what the rule requires has been provided by the Tribunal, then no error of law will have been committed.[10]The case law requires first that as a matter of elementary justice both parties should know the basis for a Tribunal's decision. Secondly, the Tribunal will inevitably find it an essential discipline to remind itself of the main findings it has to make to ensure that it has left nothing material out of consideration, nor included anything which is completely immaterial. Thirdly, sufficiency of reasoning is necessary if a court sitting on appeal, as we do, is to understand why it is a Tribunal has reached the decision which it ultimately has so that if there has been an error of law it may be identified and put right and, if there has been none, that we may have the assurance that that is so.[11]Thus with those considerations in mind, we look at the conclusion to which the Tribunal came. It began at paragraph 4.28 under the heading "Race Discrimination":
"4.28 In respect of the Claimant's allegation that she was less favourably treated on the grounds of her race, the Claimant is black, she alleges that the relevant comparator is her white former colleague Glenn Stewart who held the other assistant directors post and the fact that she was not allowed to compete for the post of assistant director was on the grounds of her race. 4.29 The Tribunal asked itself has the Respondent given an explanation for the less favourable treatment. As the Tribunal has already found it is clear there was a redundancy situation. What the Respondent's fell down on was their failure to put the Claimant in a pool for selection and then allow her to compete for the one post. That was clearly unfair. However, the Tribunal cannot jump to the conclusion that that unfair treatment was on the grounds of the Claimant's colour. The Respondent's explanation was particularly Dr Okoli's that she felt as the Claimant's post disappeared in her proposals for reorganisation and thus believed mistakenly that then Mr Stewart's post could be slotted into the new one. That decision would have been made regardless of the Claimant's colour, race, ethnicity. We say that albeit the decision made by the Respondents was unfair we repeat that does not then lead the Tribunal to jump to the conclusion that it must be on the grounds of colour. We simply could not draw that inference."
[12]Much of the Notice of Appeal by Dr Arhin was directed towards an argument that the Tribunal could not properly have come to the conclusion it there did without there being a requirement that it should find that racial discrimination was the reason for the less favourable treatment it had identified. The unfairness of the treatment stood out. The explanation was not an explanation which justified that treatment. The conclusion thus would follow that there being no justifiable explanation for the treatment, it must, given the shifting burden of proof, be that the treatment was afforded to the Claimant on the grounds of her race.[13]We have not heard Dr Arhin elaborating upon those submissions because in the event we called upon Ms Murphy first in this case because of the appearance, as it seemed to us, that the Decision of the Tribunal might not be one which satisfied the requirements of Meek and the other cases to which we have referred. It also seemed that it was internally inconsistent. In the event, we have found it unnecessary to call upon Dr Arhin to elaborate. We should simply say that as we understand the law, the question which a Tribunal has to address is whether less favourable treatment has been accorded to an employee on the grounds of race. If the reason for less favourable treatment in an allegation of direct discrimination is not race but is some other reason, then the allegation is not made out. If the employer satisfies the Tribunal that there is some other reason, it does not have itself to be an inherently justifiable one. It does not have to be a good reason in a moral sense. It simply has to be a reason which has nothing to do with race. Where, for instance, treatment has been given by mistake which might on the face of it appear to have been directed towards the recipient by reason of her race, then the fact that it had been given by mistake is an entirely sufficient reason provided the mistake itself has nothing to do with race.[14]As to that, it is plainly necessary to know something about the nature of the mistake. The fact that to be mistaken is rarely, if ever, justifiable, however understandable it may be, does not mean that it is not a perfectly adequate and proper reason to advance before a Tribunal as the reason for particular adverse treatment, nor does it mean that a Tribunal which so finds is in error of law to do so. Accordingly, had we called upon Dr Arhin to elaborate on the submissions to which we have referred she would, on our current understanding of the law, have had a difficult row to plough.[15]We return to what the Tribunal decided. On one broad overview, in paragraph 4.29 it was that the employer's conduct was a mistake. This is where, in our view, the difficulties begin. The judgment to be sufficient needs to explain what the mistake was, that it was relevant and that it had nothing to do with race. Here it is difficult to follow precisely what it is that the Tribunal thought was the mistake if one approaches what is said as a matter of literal logic.[16]Focusing upon the central sentence in paragraph 4.29:
"The Respondent's explanation was particularly Dr Okoli's that she felt as the Claimant's post disappeared in her proposals for reorganisation and thus believed mistakenly that then Mr Stewart's post could be slotted into the new one."
[17]The word "thus" appears. The mistaken belief is said to be consequent upon the Claimant's post disappearing. However, it is implicit in the sentence that Mr Stewart's post, too, disappeared. Otherwise there would have been no question of his slotting in. He would merely have continued in the post he had hitherto occupied. It is thus a mistake which, as expressed, is not relevant to a decision that one should be slotted in and the other not interviewed rather than both being interviewed if the mistake truly was about the post disappearing or if it was about the ability to slot in Mr Stewart's post as a consequence of the post disappearing. Neither appears logically sustainable.[18]What may lie behind this, taking a broader view of the judgment as a whole and bearing in mind the observations made in Balfour Beatty , may be a perception by the Tribunal that Mr Stewart was regarded by the Respondent as occupying a very different role from that performed by Dr Arhin. It might be possible to salvage the way in which the Decision is, though tersely, expressed if it could be shown that the Tribunal was clearly of the view that the Respondent honestly believed that Dr Stewart was occupying a very different role or, indeed, that he was occupying a very different role. That was clearly flagged up for the Tribunal's determination at paragraphs 15 and 16 of the Respondent's ET3. Ms Murphy in the course of her submissions before us repeatedly emphasised that the whole thrust of the Respondent's case was that although the job descriptions were on paper similar for the role which Dr Arhin for the one part and Mr Stewart for the other occupied, in practice what they did was very different. Thus, the mistake was on her submission a mistake properly understood to be not about the disappearance of the post leading to slotting in of another, but a mistake as to the necessary application in the circumstances of the slotting-in procedure provided for by the employer's policies.[19]The trouble is that however obvious this may be to Ms Murphy, the Tribunal in our view needed to say so. What is conspicuous by its absence in the whole of the Tribunal's reasoning is any view upon this particular central plank of the Respondent's case. Indeed, insofar as anything is said, it tends, though not conclusively, to the opposite effect. Thus, at paragraph 4.16 the Tribunal notes that the Claimant and Mr Stewart had before the organisational changes held, "... substantially the same job descriptions whatever the Trust or Dr Okoli sought to advance". That may well be referring to job descriptions as they are written out on paper. However, that is perhaps the less likely reading of the paragraph given the last nine words because one would expect there to be little dispute about similarity on paper of descriptions clearly set out and, therefore, little room for the Trust or Dr Okoli to advance the fact that one job description differed from another and that what might be referred to there is, therefore, the jobs as were performed on the ground; that is, the practical job description, the description which the employer would give if asked that which the employee concerned did from day to day.[20]Such a similar inference is also perhaps to be derived from paragraphs 4.18 and 4.19. 4.18 discusses the employer's policy. It provides so far as material that employees will be slotted into posts where:
"• The new post contains significant elements of the old post. . .. • There is no other employee who could claim to be 'slotted in' to the same post."
[21]In paragraph 4.19 the Tribunal comments that if one looked at the first bullet point then that would apply to the Claimant and to Mr Stewart when looking at their job descriptions. The wording is somewhat equivocal – it may focus on the job descriptions on paper, but it may instead focus on those jobs as performed, rather than as described. As to the second bullet point we have set out above, the Tribunal commented that that clearly did apply as the Claimant could and should equally have been considered for slotting in.[22]The experience, particularly the experience of the lay members, of this Tribunal is that a slotting-in procedure is much more likely to reflect the practical realities of what is being performed in the workplace than it does the linguistic technicalities of a job description perhaps issued many months or maybe years earlier. It makes no sense to slot in someone who, though on paper is doing the same job, is, in fact, doing something very different from the job which he is to be required to do once he has slotted in.[23]Thus, the Tribunal here appear, if anything (and we emphasise those last two words) to be suggesting that in practice there was little between Mr Stewart and the Claimant. If that is so, it becomes very difficult to understand precisely what the Tribunal was saying was the nature of the mistake and why it was that it was content that it had nothing to do with race.[24]The problem is compounded by this consideration. What at essence was the problem here was the allegation that two people were doing essentially the same job (that was the Claimant's allegation) and both, therefore, were to be considered for doing essentially the same job in the future as that which they had been doing in the past. The Respondent's case, essentially, was that two people were not doing the same job and that it was, therefore, sensible that the one who was doing the same job as that which was to be done in the future should continue to do it. What that required at the very least was, first of all, a consideration as to what it was in practical terms first Dr Arhin and secondly her comparator were actually doing and, second, what it was that the new job was to consist of. Without knowing those three things - her job, his job and the new job - it simply could not be said that the Tribunal would be in a position to reach any evaluative decision.[25]As to the new job, the Tribunal at paragraph 4.12 said that there was no job description for the new post. At paragraph 4.15 they commented that without a job description it was difficult to decide what type of post the Trust was, in fact, talking about. If those observations are correct, then it is very difficult to see how they could be satisfied that Mr Stewart was doing a job similar to the new one so that he could be slotted in because the Tribunal were confessing their inability to know what the new job consisted of and they made no findings about it. It is inconsistent with what is said at paragraphs 4.18 and 4.19. We quoted the first of the bullet points above and the Tribunal's response. At those paragraphs, the Tribunal seemed to be saying that the new post did contain significant elements of the old post, yet they have at paragraphs 4.15 and above appeared to say that they do not know what the new post consisted of. We do not understand.[26]In the absence, then, of findings which need, we repeat, only to have been fairly simple and fairly brief as to what it was the Claimant did, what it was Mr Stewart did, and what it was that the new job was to require of one or other of them, the Tribunal could not in our view come to its conclusion (expressed at paragraph 4.29 in the words that we have set out) in any meaningful way. We have already commented upon the linguistic difficulties of that sentence. Taking a wider view in the light of the deficiencies we have identified gives us no further assistance. However much we might be inclined to be forgiving, as we should be, of deficiencies in a Tribunal's decision, in our view this decision in its central elements and in its failure to grapple with the essence of the case as between the Claimant and the Respondent fails. It fails both because it fails to deal with the central issue satisfactorily between the Claimant and Respondent and it fails in its explanation of the reasons why it comes to the conclusion it does.[27]We would add this. Where an employer seeks to rely upon having made a mistake which disadvantages a person who may legitimately think that they might be the subject of discrimination, one would normally hope that "mistake" would be identified as a reason in the Respondent's notice. This enables a Tribunal to explore and investigate whether the mistake is a genuine mistake or not. Mistake may, as we have noted, be a perfectly adequate reason if it is shown itself to be free of any (in this context) racial bias, but it demands necessarily close scrutiny. It is easy to allege. It therefore requires a focus by the Tribunal upon the likelihood of the mistake having been a genuine accident which in turn requires a Tribunal to think in many cases as to what systems there may be within the employer which tend to prevent such a mistake being made. That may include, for instance, the impact of having a human resources department and the advice which a human resources manager may give or has given. It may include, as the Claimant alleges is the case here, considering the likelihood of a mistake being genuine where the employer is alerted to it yet has persisted in the conduct said to be a mistake and admitted only in the Respondent's notice as having been one or at court as having been one. A Tribunal must be scrupulous to ensure that "mistake" is not just a handy cloak for discrimination. It is easy to allege but it must be carefully and critically, in the best sense, examined.[28]As we have indicated, it would normally be set out in the Respondent's notice. It was not set out in this case. That may be, of course, by reasons of shame or simple personal reluctance or it may be that the focus of the argument is elsewhere, as it may well have been in this present case. An Employment Tribunal is entitled to be suspicious of a ground of mistake which emerges for the first time during the course of the evidence. If it does and if the Tribunal is satisfied by it in the sense that it adequately explains that the less favourable treatment alleged has been afforded on some ground other than race, that is an end of the matter. Inevitably, these are very general remarks. All must depend upon the particular circumstances of the case, but an Employment Tribunal will not necessarily be easily satisfied by that as an explanation.[29]Of course, issues as to race discrimination must necessarily be resolved by looking not just at the particular incident relied upon but that incident in the broader context of the relationship between the employer and the employee. In this case, there are classic examples of that which tend both in favour of the employer and the employee. For the employer, it was observed by Ms Murphy that the Tribunal had accepted, as they did, that considerable efforts had been made to favour the Claimant in her attempts to find suitable alternative employment. For Dr Arhin it was observed that on one such occasion she was not given or considered for the post dealing with older people because of an approach taken by the person in the Respondent's employment concerned with that, a Ms Brown, which was itself discriminatory. These points are necessarily part of the wider picture which, if they are relevant context, should be looked at by the Employment Tribunal.[30]Here, as we have indicated, the Claimant alleged as she did that Ms Brown had discriminated against her. When the Tribunal came to deal with that point at paragraph 4.25, they said that the Tribunal was satisfied by Ms Brown's evidence and they set out what the effect of that evidence was. We were addressed on paper by Dr Arhin as to the adequacy of the Tribunal simply declaring its satisfaction by particular evidence, and we heard Ms Murphy on this point. We should not be taken as having reached any concluded view on appeal as to that. It is accepted that a Tribunal may in many circumstances not sufficiently be performing its critical role if it declares itself merely to accept one witness' evidence or, for that matter, to reject it, but there may be circumstances in which it is fully entitled to do so. We draw attention to this because we are conscious that as a result of our decision upon the appeal for the reasons we have thus far given it may yet become relevant before a later Tribunal and we would not wish any argument to begin upon the basis that this Tribunal has reached any concluded decision on it. It seems to us that there is something to be said on both sides about it. Conclusion[31]It follows that for the reasons we have given the Decision cannot stand. We accept that the reasoning is inadequate and inconsistent and does not deal with the central issues between the Claimant and the Respondent clearly and, indeed, that the answer cannot properly be inferred from the reasoning for the reasons we have given. Accordingly, this appeal is allowed and we shall hear the parties at 2.15pm as to the consequence of our decision.[32]It is accepted by Dr Arhin that, in the light of our reasons for allowing the appeal, we should remit the case, although her original preference would have been for us to decide it ourselves. For reasons we have already given, we decline to do that.[33]So far as the arguments as to remission are concerned, Ms Murphy took a unique first position. That was that although we had this morning given judgment, we should this afternoon remit the case, not for further hearing but to the Tribunal requesting further elaboration of their inadequate reasons. This, she thought, was expressly contemplated by the Court of Appeal judgments in the case of Barke v Seetec Business Technology Centre Limited [2005] EWCA (Civ) 578 .[34]We have been unable to find any express acceptance within the Decision that this power is open to exercise by the Employment Appeal Tribunal after it has already delivered its judgment. Indeed, in response, Dr Arhin points out why that is perhaps the case: the last sentence of paragraph 1 distinguishes the Burns procedure, to which Barke also gave its approval, from the practice of remitting a case for reconsideration by an Employment Tribunal after the final determination of an appeal. Such indications as there are (see paragraph 43) suggest that the choice is to be exercised usually, if not always, before this Tribunal gives its Decision.[35]Undaunted, Ms Murphy refers us to rule 30 of the Employment Tribunal Rules, which materially provides, 30(3)(b):
"Written reasons shall only be provided ... in relation to any judgment or order if requested by the Employment Appeal Tribunal at any time."
[36]Although this relates to the power of the Employment Tribunal, and duty to provide reasons, and not specifically to this Tribunal, she argues that this is a source of jurisdiction.[37]We doubt that we have any such power to be exercised after giving judgment. However, if we had, then we would not exercise our discretion in this case, having regard to all the circumstances. First, it is not within the experience of any of us, despite fairly extensive experience of sitting on employment appeals, that this has ever been the case, or argued to be the case, before. A decision to remit is frequently to be made because of the absence of proper reasoning by a Tribunal. Remission, rather than Burns/Barke , has been the disposal used.[38]Secondly, if one takes the case at face value, the Tribunal said that they did not know what the new job consisted of. They would have to find fresh facts. That involves them taking evidence again. That is not a procedure to which the giving of reasons on the basis of evidence that has already been heard is appropriate.[39]Accordingly, we reject that primary position.[40]Her secondary position is that we should remit to the original Tribunal. She accepts that the relevant considerations are those which are set out in the case of Sinclair Roche & Temperly v Heard [2004] IRLR 763 at paragraph 46. We have decided, having heard those submissions and the submissions of Dr Arhin to the contrary, that we should in this case remit to a fresh Tribunal.[41]We shall deal with the scope of the remission in a moment, but the features which persuade us to that course are these: first, we have to consider proportionality. It is difficult for us to say how much money is at stake and Ms Murphy fairly and frankly concedes that proportionality may be very much the same as between the employer and the employee in this case. As to, however, proportionality coupled with the passage of time, which is the second consideration, the case was finally decided in November 2008. It is likely that after remission it will not be heard for a number of months. That seems to us to indicate that it will be a little short, if anything, of two years between the previous hearing and the next one at any date reasonably to be anticipated. Fresh evidence has to be heard because, as the Tribunal point out, they have not had sufficient evidence to enable it to fulfil its function, at least taking one view of their remarks.[42]That means that evidence will have to be called again before it. It is inevitable that that evidence is likely to involve Dr Okoli. Here we should mention a specific point. It is a very real concern of ours that as a result of the remission the Respondents may be in some difficulty in attaining the evidence of Dr Okoli who we are told is now in Nigeria with her husband. Her children are, however, in Britain where she had been for some time. It is perhaps likely, although we have no details, that she will from time to time come back to this jurisdiction. Be that as it may, it seems to us an almost inevitable consequence of the lack of detail about the new job, of which the Tribunal complained, that someone (and the obvious person is Dr Okoli) would have to give evidence about it anyway. So although at one stage we were attracted to that as a reason for thinking that the costs and difficulty would be disproportionate to the employer, we think on reflection those would be inevitable whether it was the same Tribunal or not. The real risk, as it seems to us, is that given the time that has passed, the same Tribunal may not easily and economically be able to separate that which they have heard before from that which they are hearing now as fresh fact, and the risk of muddling the two is a very real one.[43]We turn to the third point: bias or partiality. There was one time an accusation of partiality made by Dr Arhin which was comprehensively rejected in this Tribunal by HHJ Ansell. We do not think there is any reason to suppose that the Tribunal which heard the case was biased or lacked partiality.[44]As to a flawed decision we have, as Ms Murphy submits, to make our own decision, and we do. Taking into account, when running this together with the fifth consideration, which is the danger of a second bite at the cherry, we have been very unimpressed by aspects of the Decision as we have made clear. We have noted, with a little surprise, that when the judgment on the remedies hearing was put before us (only after we had given our judgment on the appeal) there were some aspects in which it might be thought that inconsistent with the original Decision. We have heard no detailed argument on that but that is what a cursory reading might suggest.[45]We have to ask and carefully consider whether the original Tribunal appeared to have already made up its mind in relation to all the matters before it, for if it has:
"It may well be a difficult if not impossible task to change it: and in any event there must be the very real risk of an appearance of pre-judgment or bias if [the case is remitted to such a tribunal]."
[46]Taking our view of the flaws in the Decision, together with that risk, it is plain that the Tribunal has declared its ultimate view. It may be right that that is the view to which a Tribunal, considering all the facts, should come. We do not say it necessarily was wrong. But there is plainly a risk that if the same Tribunal rehears and comes to the conclusion it has already stated, that this is regarded as or appears to be a decision of a Tribunal which has already indicated its view upon the issues without having first heard the full facts. That, in our view, is a significant risk.[47]Because it is not one of the matters to which Sinclair Roche & Temperly urge us to have regard, we have thus far set aside the understandable view of Dr Arhin on this. We have to form our view. We have concluded that if any future decision is to the effect that the Respondent did not discriminate on the grounds of race against Dr Arhin it serves better the interests of justice that that fresh decision should be seen to be the product of an independent, freshly constituted Tribunal coming to, as it would be, the same conclusion as the Tribunal did in the current, flawed judgment. A fresh Tribunal begins with the parties on a level playing field, and neither disadvantaged (on the facts of this case) by their being fresh. We think that better serves the interests of both parties and justice generally.[48]We have taken full account, we hope, of Tribunal professionalism, about which no more need be said. It is not a biased Tribunal that we are considering the appeal from; it is one which we do think would approach its duties, in the light of our judgment, with professionalism. But for the reasons that we have given, we think, drawing the balance, that the proper course is to remit to a fresh Tribunal.[49]As to the scope of the remission, there is plainly no remission on the unfair dismissal. It must be accepted that there was an unfair dismissal and the basis for those findings must be accepted. That, therefore, is settled territory.[50]What it seems to us is in play is, first, that the Claimant needs to establish that there was indeed less favourable treatment. Unfavourable treatment in her non-selection for post is not less favourable treatment unless it can be shown that her comparator was truly in a comparable situation. That, therefore, implies that the Tribunal will wish to consider the job that he was doing, compared to the job that she was doing, both as officially described in documentation and as practically performed, as it were, on the ground. Next it will need to consider, in this review, what job it was that was potentially available to both. Those are the main focuses of its Decision. If it concludes that there was less favourable treatment because the Claimant ought to have been considered for that post and was not, then it needs to conclude why that was and what the reason for it was. As to that, we need say nothing save that it is plainly for them to determine whether it was for race or for some other reason, whatever that reason may be.[51]Touching on that Decision, the Tribunal will wish to look a bit, but we do not suggest exhaustively so, albeit sufficiently fairly to determine any issue which arises, at the context of the relationship between the parties, which includes the conduct of both parties toward each other after the event took place about which the claim was made. That means that, if asked to do so, the Tribunal will no doubt wish to consider the failure of the Respondent to appoint her to the elderly persons post on the one hand and, on the other, may wish to consider, if the Respondent asks it to consider, the way in which the Respondents, they say, put the Claimant in the way of alternative employment after she was not selected for the post as an assistant director public health consultant.[52]Beyond that we say nothing more about the scope of the remission. It remains for us simply to thank both parties for the way in which the authorities in this case were compiled. They have been marked, either by highlighting or by sidelining, in both cases at the appropriate points to which our attention was to be directed. That is what should happen; it is what the practice direction requires. Sadly, it is all too rarely done, so thank you.